Wednesday, 8 March 2023

Bills

Building Legislation Amendment Bill 2023

Statement of compatibility

Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (10:38): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Building Legislation Amendment Bill 2023.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Building Legislation Amendment Bill 2023.

In my opinion, the Building Legislation Amendment Bill 2023 (Bill), as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

Parts 2 to 5 of the Bill amend the Building Act 1993 (Building Act), the Architects Act 1991 (Architects Act) and other Acts to address systemic issues with Victoria’s building system. These Parts of the Bill will –

• establish a statutory position of State Building Surveyor to be appointed by the Victorian Building Authority (VBA). This position will provide technical expertise through binding determinations on the interpretation of building and plumbing regulations, codes and standards for the building and plumbing sector. As a public authority, the State Building Surveyor must ensure that binding determinations are compatible with the Charter;

• establish a statutory position of Building Monitor to collect, analyse and publish information, and provide advice to the Minister and others, regarding systemic issues affecting domestic building consumers and to represent, at a systemic level, domestic building consumer interests;

• broaden the VBA’s power to enter into information sharing arrangements with other persons and bodies who exercise functions related to the building sector;

• amend two categories and insert two new categories of building practitioner, who will be required to be registered before they can carry out a prescribed kind of work in relation to building;

• require a relevant building surveyor to provide an information statement to an owner of land or a building, for which an application for a building permit has been made in relation to a prescribed class of building, with prescribed information relating to the surveyor’s role and responsibilities, when issuing the building permit;

• provide a process for, and requirements relating to, the preparation and approval of a building manual for a prescribed class of building before an occupancy permit may be issued for the building;

• enable a wider range of circumstances in which the cladding levy can provide financial or other support to owners who are not eligible to receive funding under the current cladding rectification program;

• make other technical or minor amendments to the Building Act; and

• improve the governance arrangements for the Architects Registration Board of Victoria under the Architects Act.

Human Rights protected by the Charter that are relevant to the Bill

The human rights protected by the Charter that are relevant to the Bill are –

• right to privacy and reputation (section 13); and

• right to take part in public life (section 18).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.

Privacy and reputation

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) provides that a person has the right not to have their reputation unlawfully attacked. An interference with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. An interference with privacy will not be arbitrary provided it is reasonable in the particular circumstances.

Building Act amendments

In Part 4 of the Bill, clause 47 will replace section 259AB of the Building Act to widen the circumstances in which the Victorian Building Authority (VBA) can enter into information sharing arrangements with one or more persons or bodies. Such persons or bodies are defined as a “relevant agency” in new section 259AB(7). The Bill will enable one or more relevant agencies to enter into an information sharing arrangement, provided the VBA is a party to the arrangement.

To the extent that the information shared between the VBA and any relevant entities includes personal information, the Bill will engage the right to privacy.

Any limit on the right to privacy by Part 4 of the Bill is reasonable and justified

Although these provisions require and permit the VBA and relevant agencies to deal with personal and identifying information, I do not consider these dealings are unlawful or arbitrary.

The purposes of these amendments are to: (a) ensure the VBA and each relevant agency has access to the information it requires to perform its functions effectively; (b) support a cohesive approach to provision of government services to building consumers, including regulation, by empowering agencies to share information in an efficient and effective way; and (c) to enable information to inform a robust understanding of trends and issues in the building system.

Clause 47 of the Bill imposes several limitations on how information can be shared under an information sharing arrangement made under substituted section 259AB(1) of the Building Act. Under new section 259AB(2) and (3)(a), if the information is to be shared between the VBA and a relevant agency, the information must be reasonably necessary to assist in the performance of the Authority’s functions under the Building Act or the functions of the relevant agency. Under new section 259AB(2) and (3)(b), if the information is to be shared between two relevant agencies, it may only be information that: (a) the receiving relevant agency could have requested from the Authority under section 259AB(3)(a); or (b) is reasonably necessary to assist in the performance of the relevant agency’s functions under the Building Act.

Further, the VBA and each relevant agency that is a public entity within the meaning of the Public Administration Act 2004 is bound by the requirements of the Privacy and Data Protection Act 2014 and must ensure that any collection, use or disclosure of information is undertaken in accordance with the Information Privacy Principles set out in Part 3 of that Act.

In my view, these provisions will not be an arbitrary or unlawful interference with privacy, as any disclosure of personal information authorised by these amendments will only occur to the extent necessary to perform the functions of the Victorian Building Authority or relevant agency and, for the sharing of information between relevant agencies, the functions of the relevant agency are confined to any functions the agency has under the Building Act.

Accordingly, I consider that these provisions under clause 47 of the Bill are compatible with the right to privacy under section 13 of the Charter.

Part 3 of the Bill will provide for the appointment of a Building Monitor to (amongst other objectives) improve the experiences of domestic building consumers and affected parties of the building system by advocating for their interests at a systemic level and providing independent expert advice on these issues to the Minister and to persons and bodies involved in the building industry. The Building Monitor will be empowered under new section 208K of the Building Act to require, by notice in writing, a person or body to give the Building Monitor information specified in the notice. The purpose of this power is for the Building Monitor to gather and analyse information from certain building system entities to identify issues affecting domestic building affected parties. Under new section 208P of the Building Act, the Building Monitor will also be required to annually publish a Building Monitor Issues Report that is to specify the systemic issues that the Building Monitor has identified as affecting domestic building affected parties and make recommendations to the Minister on ways to address these issues.

To the extent that the information obtained by the Building Monitor includes personal information, the Bill will engage the right to privacy.

Any limit on the right to privacy by Part 3 of the Bill is reasonable and justified

Although these provisions require the Building Monitor to gather and analyse personal and identifying information, I do not consider these functions are unlawful or arbitrary.

The types of information that can be requested are limited under section 208K(1) of the Building Act to information that is relevant to the performance of the functions of the Building Monitor. The functions of the Building Monitor, to be specified in new section 208F of the Building Act, relate to matters of concern to domestic building affected parties. Clause 18 of the Bill will also insert a definition of “domestic building affected parties” into section 3 of the Building Act to further contain the functions of the Building Monitor.

Under new section 208K(1), the Building Monitor is also required to consult with a person or body before giving them a notice under that section to provide information or data. This is intended to enable the Building Monitor to gain an understanding of what information is held by the person or body who will receive a notice and to ensure the notice does not unintentionally gather information that the Building Monitor does not need for their functions.

The persons or bodies from whom or which the Building Monitor may require information be provided are limited to those listed in new section 208K(3) of the Building Act and they are confined to public sector persons or bodies.

Further, under new section 208P, the Building Monitor will be required to gather information transparently, by including in an Issues Report information about when and to whom a notice under section 208K(1) was given, the type of information or data required under the notice and whether the Monitor is a party to any information sharing arrangements or agreements.

Clause 25 of the Bill will also insert new sections 208L and 208M in the Building Act to limit how the Building Monitor may use the information it gathers. Under new section 208L, the Building Monitor must not publish or authorise the publication of any personal information or data or commercially sensitive information or data that has not first been de-identified or aggregated with similar information (as the case requires) before it is published.

Further, new section 208M makes it an offence if the Building Monitor or any person assisting or acting on behalf of the Building Monitor uses or discloses information (including personal information) obtained in the course of performing the functions of the Building Monitor other than for the purposes of performing the Building Monitor’s functions.

Clause 25 of the Bill will also insert new section 208G to provide that the Building Monitor, when exercising its powers, must comply with any relevant requirements specified by or under any other Act. The purpose of this provision is to restate, for the avoidance of doubt, the obligation of the Building Monitor, as a statutory entity, to comply with legislation such as the Victorian Data Sharing Act 2017 and its de-identification guidelines issued under section 33 of that Act and with the Information Privacy Principles set out in Schedule 1 of the Privacy and Data Protection Act 2014.

These provisions establish an appropriate balance between enabling the Building Monitor to perform its functions and achieve its statutory objectives, by ensuring it can transparently gain access to the information needed to understand where the issues in the building system exist for domestic building consumers and affected parties, while protecting the rights of individuals to have their privacy and reputations protected.

Consequently, I consider that these provisions under the Bill are compatible with the right to privacy under section 13 of the Charter.

Right to take part in public life

Section 18 of the Charter protects the right of persons to take part in public life, which includes the right to participate, without discrimination, in the conduct of public affairs, directly or through a freely chosen representative. This right is subject to reasonable limitations under section 7 of the Charter.

Building Act amendments

Clause 25 of the Bill inserts new section 208N, which will enable the Minister for Planning to establish a Building Monitor Reference Group (Reference Group), to be chaired by the Building Monitor.

The Reference Group is intended to provide a forum in which the Building Monitor can hear directly about the experiences of “domestic building affected parties”. This defined term captures only people having a home constructed for them or whose enjoyment of their home is affected by adjacent building work. The purpose of the Reference Group is to communicate the experiences and views of people who, because they are not building professionals, do not have a working knowledge of the building system and are therefore not proficient in navigating that system.

New section 208N(5) provides that the Minister must not appoint a person to be a member of the Reference Group who is a registered building practitioner, a registered architect or an endorsed engineer, or who, in the opinion of the Minister, has a conflict of interest in being appointed as a member of the Group. This provision will engage the Charter right of persons to take part in public life.

However, I consider any limitation on this right is reasonable and justified to ensure that the experiences of people who are not building professionals are obtained and that there are no other less restrictive means of obtaining these views. In addition, each of these classes of building professional (a registered building practitioner, registered architect or endorsed engineer) have their own professional associations, in which and through which they can participate in public life. The Building Monitor can also engage with these building professionals through other forums (including the Building Regulations Advisory Committee and Plumbing Advisory Council), through their stakeholder representative bodies and via engagement with other building system entities.

Architects Act amendments

Clause 60 of the Bill substitutes section 47 of the Architects Act to provide for the qualifications, skills and experience that members must have to be appointed to the Architects Registration Board of Victoria. This substituted section limits the right to public life by excluding certain classes of people from being members of the Architects Registration Board of Victoria. However, I consider these limitations to be reasonable to ensure that the Board has sufficient expertise, skills and qualifications in performing its powers and duties.

The Hon. Sonya Kilkenny MP

Minister for Planning

Second reading

Sonya KILKENNY (Carrum – Minister for Planning, Minister for Outdoor Recreation) (10:39): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Government is committed to delivering a building system that provides safe, compliant and durable housing and buildings. This requires a workforce of skilled and experienced practitioners and a strong and viable system of regulation to enforce compliance. This Bill makes a series of legislative amendments that will implement reforms to reshape the regulatory landscape in Victoria, with a key focus on consumer protection, which the Government has placed at the centre of the process, heralding a new era for the integrity of building regulation in Victoria.

Legislative changes

The Bill will primarily amend the Building Act 1993 and the Architects Act 1991 and make minor or consequential amendments to the Cladding Safety Victoria Act 2020, Owners Corporation Act 2006, the Sale of Land Act 1962, the Domestic Building Contracts Act 1995, the Building and Construction Industry Security of Payment Act 2002 and the Victorian Civil and Administrative Tribunal Act 1998.

These legislative amendments will create the following reforms:

• Formalise and strengthen the role of the State Building Surveyor;

• Establish a Building Monitor;

• Expand the categories of building practitioner that will be required to be registered;

• Enhance the building approvals process by introducing further safeguards to better inform consumers;

• Strengthen information sharing between statutory entities with a role in the building regulatory framework;

• Amend the distribution of the cladding rectification levy; and

• Strengthen and improve the governance arrangements of the Architects Registration Board of Victoria under the Architects Act.

Establishing a statutory role for the State Building Surveyor

The State Building Surveyor (SBS) was established by the Government as an executive staff member of the VBA to provide authoritative compliance advice, technical guidance and interpretation of relevant building standards. The Government now seeks to strengthen this role through recognising it in legislation with statutory objectives and functions.

The creation of a legislated role for the SBS will enable greater focus on critical functions and thereby bolster support for industry practitioners. The legislated role will remain within the VBA to enable economies of scale, facilitate information sharing and avoid further fragmentation of oversight within the regulatory system.

Under this Bill, the SBS will be positioned as the primary source of technical expertise and guidance for the building and plumbing industries. The SBS will encourage improvements to regulatory oversight and practices within these industries, with a particular focus on the building surveying profession and councils.

The SBS will have the power to issue binding determinations relating to technical interpretation of building and plumbing standards and requirements. Industry practitioners will be required to ensure that they carry out building work or plumbing work or exercise particular functions in accordance with any relevant binding determination.

Building Monitor

In order to better protect the interests of domestic building consumers and put them at the centre of our legislative framework, the Government has established a Building Monitor, tasked with representing and advocating for these consumers at a systemic level. The Building Monitor will be a statutory appointment made by the Governor in Council, who will advise the Minister for Planning on systemic issues and risks facing domestic building consumers and make recommendations to address identified issues.

The Building Monitor will collect and analyse information and data to identify issues and work collaboratively with building system entities to improve the coordination of information. Most significantly, the Building Monitor’s findings and recommendations will be published in an annual Building Monitor Issues Report. Preparation of this report will involve direct and ongoing engagement with domestic building consumers to ensure the experience of those navigating the building sector from end to end is better understood.

Expanding the registration framework for building practitioners

The Bill will expand the building practitioner registration system to achieve greater national consistency, thereby improving compliance with national building standards and facilitating national labour mobility. It is anticipated that the expanded practitioner registration system will not only strengthen practitioner competence, accountability and regulatory oversight, but improve consumer protection. Gaps in Victoria’s building practitioner registration framework will be addressed initially by establishing the following categories of building practitioner:

• Building Designer;

• Project Manager;

• Building Consultant; and

• Site Supervisor.

Consistent with how existing categories and classes of building practitioner are set, the regulations will prescribe the authorised work and registration requirements of these practitioners.

The new ‘Building Consultant’ category could support follow-on regulation to extend registration requirements to new classes of practitioner who perform:

• pre-purchase due diligence inspection work;

• essential safety measures maintenance work;

• disability access work; and

• energy efficiency work.

Building Manuals

The Government is committed to improving consumer confidence in the building industry and enhancing transparency. To this end, this Bill will amend the Building Act to introduce a requirement that a draft building manual be prepared by the applicant for an occupancy permit and provided to the relevant building surveyor for approval. Building manuals are intended to be a single repository of all relevant information relating to the design, construction and ongoing maintenance of a building.

The building manual will address a significant hurdle for owners and owners corporations in accessing information about their building. By making information about the design, construction and maintenance of a building more readily accessible, the building manual will aid not only owners and owners corporations but also other parties such as building practitioners and regulators in future.

Once the draft building manual has been approved by the relevant building surveyor, the manual will be provided to the owner or the owners corporation, who will be responsible for maintaining and keeping the documentation current.

Minor amendments are being made to the Owners Corporation Act and the Sale of Land Act to require that the building manual is provided at the first meeting of a new owners corporation and also to future purchasers of the land.

Subsequent amendments to the Building Regulations 2018 will prescribe a number of matters necessary to operationalise the building manual requirements, including what classes of buildings and building work will require a manual to be prepared or updated, the digital format of the manual, and the information that must be contained within a manual.

Building surveyor obligation to provide information statement

Consistent with the Government’s commitment to promote and protect the interests of consumers of building work, this Bill will require the relevant building surveyor to provide, at the time of issuing the building permit, a document that clearly details their roles and responsibilities. This will increase transparency and assist consumers to be fully informed about the critical role that their appointed building surveyor plays in their building project, as well as the broader approvals process for the work. Regulations will prescribe the building work to which this new requirement will apply, as well as the form of the information statement and the information it must contain.

Strengthening Information Sharing

The Victorian building sector is made up of myriad agencies, each with an important role to play in maintaining a safe and well-regulated industry. The Government is taking steps to enhance the ability of these agencies to better share information and improve collaboration. By integrating building system information, clarifying information sharing arrangements and making that information accessible through clear pathways, participating agencies will have the opportunity to aggregate data to better inform targeted and evidence-based decision making. This will also enable better transparency and reporting on the health of the building system.

Amendments to the distribution of the cladding rectification levy

Amendments to the Building Act will also allow the Government greater flexibility to determine how the cladding levy should be directed to support rectification of buildings found to have non-compliant combustible cladding. The cladding levy was introduced by the Building Amendment (Cladding Rectification) Act 2019 and came into effect on 1 January 2020. Currently, the levy is collected by the VBA and paid to Cladding Safety Victoria under the Cladding Rectification Program.

This Bill will enable buildings that fall outside of the funded cladding rectification activity to be supported with funding made available to deliver relevant programs to facilitate cladding rectification.

Improvements to the Architects Registration Board of Victoria

To ensure the Architects Registration Board of Victoria (ARBV) is well-placed to be a modern, fit-for-purpose regulator of the architecture profession in Victoria, amendments to its institutional and governance mechanisms are required. The Bill will amend the Architects Act to ensure appointment requirements for the ARBV and its Tribunal reflect best practice governance standards for a skills-based board. The nominations process will be replaced with an open and merit-based recruitment procedure overseen by the Minister for Planning, to secure a board that has the knowledge, experience and expertise required by a professional regulator.

The ARBV will be required to prepare and implement a four-year strategic plan approved by the Minister to strengthen decision making and enhance operations. The amendments provide for an increase in the maximum appointment term of board members from three to five years to support the board’s ability to engage with the strategic planning cycle. The amendments will modernise and streamline the governance arrangements for the ARBV to ensure it is equipped to respond to the challenges of a reforming building environment.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:39): I move:

That this debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 22 March.